Parker v. Goldsmith

16 Ala. 526 | Ala. | 1849

CHILTON, J.

The main question presented by this record is, whether the defendant in an action of trover is entitled to give in evidence his own declarations, made at the time a demand is made of him for the property, which declarations respect the title to the property, but by which he does not propose to show any qualified refusal to surrender it, or any excuse for not doing so. The general rule is, that an admission or declaration .is not admissible in favor of the party making it. — 7 Cow. Rep. 459; 2 Phil. Ev. 154, n. 165. This rule has several exceptions, growing out of the nature of the declarations to be proved, and their connection and relation to some act, as constituting part of it. The cases to which the counsel for the plaintiff in error has cited the court are illustrations of some of these; but the case at bar does not come within any established exception to the general rule, and in my opinion it would be opposed to the well settled rules of law to allow a party who has wrongfully possessed himself of the property of another, when the controversy has been stirred and restitu-tution of it demanded, to create by his mere declarations testimony for himself. The law wisely forbids that a man should give testimony in his own cause, except in a few eases where the Legislature has deemed necessity required a departure from the rale. Much less then ought his declarations, made when not under oath, but under temptation to pervert the truth, be received.

The true rule applicable to cases like that before us, we think is laid down in Dent et al. v. Chiles, 5 Stew. & Por. Rep. 383-392, where it was held that if the declarations of the defendant in reply to the demand amounted to a reasonable excuse or qualification of his refusal to deliver up the property, then they were competent, to go to the jury, as showing that there was in fact no conversion; and it was further added that it was incumbent on the party who offered the declarations to show what they were, that the court might determine from their character whether they came within the exception. The same rule was afterwards affirmed by this court in St. John v. O’Connell, 7 Port. Rep. 466-474, and Brown v. Brown, 5 Ala. Rep. 508-511. It is obvious, however, that this exception to the rule can only apply to cases where the defendant has obtained the possession rightfully, and not where he has tortiously obtained the property in violation of the rights of the true owner: for in such case a demand is wholly unnecessary, as the tortious taking includes a conversion. — Glaze v. McMillion, 7 Port. Rep. 279-281; St. John v. O’Connell, ib. 466-479.

Applying the principles settled by the foregoing decisions of this court, it is very clear that the Circuit Court did not err in excluding the proof offered of the declarations of the plaintiff' in error. The record informs us, the declarations were, that the defendant claimed to hold the slave as the guardian of John T. Goldsmith, and that he declared the plaintiff had no right to him. Such statements were clearly illegitimate for any purpose whatever, when offered by the party making them.

The will of John T. Goldsmith was properly rejected. The slave was not named in it, and neither parly claimed any title under it No legitimate presumption could, therefore have been drawn from it in aid of the defendant below. If the slave vested in the plaintiff by virtue of the deed, the subsequent acts or admissions of the grantor could not divest it, and as there was no connection whatever between the will and the deed under which the plaintiff claimed, we cannot conceive' how it could have aided the court and jury in arriving at the proper construction of the deed.

Let the judgment be affirmed.